A former teacher and local businessman who was sentenced to five years in prison for raping a student in the 70s lost his appeal last week.
Warren Fertig, 73, pleaded guilty to one count of rape in Red Deer court last year. He was sentenced to five years in prison this past spring. He appealed his sentence, which was heard by the Alberta Court of Appeals on Sept. 23rd. The appeal was dismissed.
The former teacher and local business owner was initially charged in September 2011 with one count of rape, one count of sexual intercourse with a female under the age of 14 and one count of sexual intercourse with a female between the age of 14 and 16. These charges stem from May 2010 when Red Deer RCMP initiated an investigation into a historic sexual assault after receiving a complaint.
Fertig, who was a teacher at River Glen School at the time of the crime, had an inappropriate sexual relationship with a student between 1975 and 1977. The female student was 12-years-old when the relations started and 15 when it ended. Fertig was aged 35 when the offenses began and was 37 when they ended.
Earlier this year, Crown Prosecutor Jason Snider had asked that a sentence between two to four years to be served in a penitentiary be handed down, while defense lawyer Alain Hepner asked for a conditional sentence.
Court heard in an agreed statement of facts, details of a sting operation that took place in August 2011 after the victim, who cannot be named due to a publication ban, filed a complaint with police.
The victim acted as an agent with police and went to Fertig’s business, Allan Dale Trailers. After their first meeting at the business, they agreed to meet for lunch and exchanged cell phone numbers.
During their lunch meeting the following day, court heard that Fertig told the victim he was head over heels for her and also discussed their previous sexual encounters.
Fertig initially pleaded not guilty but changed his plea after a preliminary inquiry took place. He has stated his actions were an error in judgment.
During sentencing earlier this year Judge Norman Mackie said, “He (Fertig) has put himself at a risk of a sentence of up to life imprisonment. This is a serious sexual assault upon a child over a period of time. You were caught in a sting operation and almost reveled with the victim about your early sexual acts.
“This was a morally despicable interaction. The bottom line is that this activity was not an error in judgment it was several criminal offenses. It was the continuum of self-indulgence over a three-year period.
“You breached trust not only to the victim but to your profession of teaching. You attempted to steal the life of a woman who has turned out to be more powerful than you.”
According to Court of Appeal documents, Fertig said there was evidence put before the court to show he had been a good, productive citizen who contributed to his community. He also said he has significant family and community support.
The Court of Appeal documents also show that Fertig stated the sentencing judge failed to consider the collateral consequences of sentencing including the shame and embarrassment of disclosing the offence to family, friends and business associates. He argued that the admission of guilt was an indication of taking responsibility for the offence and gave effect to general deterrence and denunciation without need to inflate the sentence.
Court of Appeal documents also showed Fertig argued that his guilty plea should have attracted some weight rather than be disparaged for not being an early plea and that he should have received credit for the lack of repetition in the ensuing decades and his low risk to reoffend.
Finally, he argued the sentencing judge unduly focused on characterizing the offence as rape for which life was the maximum sentence. He submits that a sentence in the reformatory range was fit.
In the Court of Appeal’s decision, it is recorded that given the length of time the offenses took place (about two and a half years) and the number of times the offenses happened (between 10 and 15), the board rejects any contention that the sentence is demonstrably unfit. Rather the appeal board regards it as fair from the prospective of the appellant. The appeal was dismissed.